Arta Naik vs Balakrishna Naik and Others

P.K. Mohanti, J.—This appeal, by the Plaintiff, arises out of a suit for partition.

Plaintiff and Defendant No. 1 are the sons of Defendant No. 2. The Plaintiff''s case was that the properties described in schedules'' A'', ''B'' and ''C'' were the joint family properties of the parties and he was entitled to one-third share in the same. Defendant No. 1 claimed the ''B'' schedule property as his self-acquisition. The trial Court passed a preliminary decree for partition of one-third share of the Plaintiff in all the three schedules. On appeal the learned Additional Subordinate Judge held that the ''B'' schedule properties were the self-acquired properties of Defendant No. 1 and were not liable to partition. He directed that the one-third share of Defendant No. 2 in the ''C'' schedule properties should be allotted to Defendant No. 3 Nayan Dei, the wife of Defendant No. 1, on account of her purchase from Defendant No. 2. Accordingly he modified the decree passed by the trial Court. Aggrieved by the decision of the appellate Court with regard to the ''B'' schedule property, the Plaintiff has come up in appeal to this Court.

3 The sole question for consideration is whether the ''B'' schedule properties are the joint family properties of the parties or the self-acquired properties of Defendant No. 1. Plaintiff''s case was that these properties, though standing in the name of Defendant No. 1, were acquired with the aid of the joint family properties.

The principles governing the determination of the question whether a particular property standing in the name of a member of a joint Hindu family is his self acquired property or joint family property are well settled. There is no presumption that" a Hindu family, merely because it is joint, possesses any joint property. Hindu Law does not prohibit a member of a joint family from acquiring any property for his own benefit. Unless it can be shown that the property was acquired with the aid of the joint family, the property so acquired by an individual member does not become joint family property. The burden of proving that any particular item of property is joint, primarily rests on the Plaintiff. But where it is established that there was nucleus of joint family property and that nucleus was such as did or might have contributed to the property claimed to be self-acquired, the onus shifts on to the person who claims the property as sell requisition to affirmatively establish that the property was acquired without any aid from the joint family. I may only refer to the case of Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh, , where their Lordships of the Supreme Court laid down the law in the following terms:

The burden of proving that any particular property is joint family property is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.

In the instant case, there is no averment in the plaint that there was a nucleus. Even if there was a nucleus, there is nothing to show that it was such as out of it the ''B'' schedule property could be purchased. The total income of the joint family property was not indicated and the surplus, after defraying the needs of the family, was also not mentioned. No case was also made out that even if the property was the Self-acquisition of Defendant No. 1, it assumed the character of joint family property by blending.

The learned appellate Judge came to the finding that there was disruption of the joint family status prior to 1964 and that thereafter the Plaintiff and Defendant No. 1 purchased sizeable property from their personal incomes. The ''B'' schedule properties were acquired by Defendant No. 1 by three registered sale deeds Exts. 1, 2 and 3 which are dated 29-4-1966, 25-3-1968 and 21-3-1966 respectively, i.e. long after disruption of the joint family status. From all these facts a natural presumption would arise that the ''B'' schedule properties were the self-acquisition of Defendant No. 1. I may in this connection refer to the case of Ragnunath Panda v. Radha Krishna Panda and Ors. ILR 1975 Cutt 328 where a Division Bench of this Court held as follows:

The doctrine of nucleus has application only when there is existence of a coparcenery. Any acquisition subsequent to the severance of joint status is the self-acquisition of the person who acquires the property.

The findings of the learned appellate Judge are based on appreciation of evidence and there is no scope for interference. The appeal fails and is dismissed, but in the circumstances without any order as to costs. The decree passed by the learned appellate Judge is maintained.